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POWERS OF SEARCH AND SEIZURE - Search warrants - Scope

Friday, August 25, 2017 @ 8:37 AM  

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Appeal by the accused, Barbour, from her conviction for fraud over $5,000. Barbour alleged the Crown failed to discharge its obligation to make full disclosure of all relevant material in its possession and that the trial judge erred in his interpretation of the scope of a search warrant. The charges arose out of numerous applications for residential mortgages. Each mortgage application was made through a mortgage agent, Field. The applications all contained false information. All of the named mortgage applicants were friends, relatives or co-workers of the appellant. The main issue at trial was the identity of the perpetrator of the fraud. Field had been discharged from his employment as a result of the mortgage transactions. Field testified that all of the transactions were initiated by the appellant, and that the information and documents that turned out to be inaccurate were provided by her. The trial judge concluded that the appellant was responsible for the fraud. The appellant was self-represented at trial, but had been represented by various counsel prior to trial. The appellant had sought a mistrial on the basis that deleted information in a draft Information To Obtain (ITO) suggesting that Field had been fired for altering documents had not been disclosed by the Crown. The trial judge found that the Crown had made full disclosure and that the appellant had failed to show that there was a reasonable possibility that the outcome of the trial was affected, or that the overall fairness of the trial process was compromised, even if disclosure of the notation in the draft ITO had not been made. The appellant also challenged the admission of evidence obtained through use of the search warrant which permitted a search of her residence for documents relating to the properties owned by her and her ex-husband. Because of the nature of the fraud, and the use of straw buyers, some of the titles were in the names of the straw buyers. The appellant argued that these properties were not owned by her and that the seizure of documents relating to them was outside the scope of the warrant. The trial judge concluded that the search was within the reach of the warrant, when it was properly interpreted in context. He found that the words “properties owned by” meant “properties beneficially owned and controlled by”, not necessarily “properties registered in the name of the appellant at the Land Titles Office”. The trial judge concluded that because the appellant essentially controlled all the transactions, and in some cases the straw buyers did not even know the properties existed, she fell within an expanded definition of “owner”.

HELD: Appeal dismissed. There was no breach of the Crown’s disclosure obligation. The pivotal issue was that the appellant and her many counsel never reviewed the disclosure provided, not that there was non-disclosure. There was no evidence that Field was in fact fired for altering documents. It was apparent from the face of the draft ITO that the deleted information was at least third-hand hearsay in the hands of the anticipated affiant. If the appellant thought she was entitled to a mistrial after she had been convicted because Field had altered documents, it was incumbent for her to bring evidence that he possibly had actually altered documents. No such evidence was presented. The appellant was well aware that Field had been fired as a result of his involvement in these transactions. The appellant had many opportunities to obtain further information about Field’s employment and had expressly declined to do so. She was advised of the O’Connor procedure, but chose not to invoke it. The trial judge’s conclusion that there was no prospect of a wrong or miscarriage of justice in any event, disclosed no reviewable error. The appellant’s opportunity to make full answer and defence was not compromised by her not knowing of the notation in the draft ITO. The trial judge was justified in finding that the warrant was not intended to be as narrow as alleged by the appellant. Even if there was some technical error, excluding the evidence would not be justifiable.

R. v. Barbour, [2017] A.J. No. 727, Alberta Court of Appeal, F.F. Slatter, S.J. Greckol and J. Strekaf JJ.A., July 13, 2017. Digest No. TLD-August212017011